Malpractice in Advanced Nursing Practice A CLOSER LOOK

Legal/Ethical Principles

When nurses pursued independent practice outside hospitals, the law supported their bid to breach traditional roles (Kjervik & Brous, 2013). This phenomenon was described as a form of "growing militancy" that refused to stay under the dominion of medicine (Baer, 1993 as qtd in Kjervik and Brous). Ethics supported the accompanying empowerment of the militant act as in expressing autonomy in practice, beneficence and care-based ethic in doing what they see as best for patients, and justice or fair treatment for patients and all providers involved. The earliest practitioner program was designed in 1965 by Loretta Ford and Henry Silver in their response to the lack of primary care physician at the time. The program emphasized primary care in health promotion and disease prevention. The idea caught and more primary care providers increased. This is why many of the first court suits involving advanced practice nurses or APNs were APNs and other working in acute care facilities. These court suits were connected either to their expanded roles and privileges or their relationships with physicians concerning antitrust and insurance and supervision by physicians. The APNs' expanded role and privileges come under a standard of care. This legal standard for a health professional fixes the expected performance of a nurse. But this expectation evolves as clinical practice changes and nursing roles expand. One set of cases in this category concerns negligence. Negligence is failure to meet the set standard of care, which leads to patient injury (Kjervik and Brous).

Malpractice in Nursing

As malpractice suits increase against APNs, they need to be more knowledgeable about the fundamentals of nursing malpractice (Walker, 2011). These include their liability, options with malpractice coverage, their future role, and legislative issues like tort reform. Sources of help include their employer- organization, professional associations, schools and colleges of nursing and State and national regulating bodies. It was gathered that APNs extend care by phone from 20-30%, which exposes their patients to a liability never before noticed and considered. In trying their cases, the court will look for a reasonable response. This can come from formal policies and procedures, testimony of experts and by evaluating local and national standards related with causation and injury. Nursing practice is not only a career but also a scientific process, which evolves with healthcare advancements and public policy (Walker).

Causation and Negligence

Causation is one of the elements that constitute negligence (Turton, 2009). This is an idea that links the claimant's loss to the defendant's negligent behavior. Among the recently established exceptional approaches in determining factual causation is a causal process. It must be identified in every case so that the correct test for establishing factual causation may be applied. If the negligent behavior or negligence consists of mis-diagnosis or mistreatment of an illness, the causal problem is medical in nature and thus calls for a unique approach to causation. If the negligence in question is a failure to caution the patient about the risks of treatment, one cannot establish liability without factual causation (Turton).

Quality of Care and Negligence Litigation (Studdert et al. 2011)

Are high-quality healthcare institutions sued for negligence less than lower-performing institutions (Studdert et al., 2011). A group of tort claims filed against 1465 nursing home from 1998-2006 was gathered for investigation from the Online Survey, Certification and Reporting System and the Minimum Data Set Quality Measure/Indicator Report. Investigation revealed an inverse relation between nursing home performance and litigation. The levels of litigation were only fractionally lower for the best-performing nursing homes than less-performing nursing homes. Earlier research already explored the relationship between the quality of healthcare and the risk of negligence litigation. But the question remained if the delivery of high-quality care reduces the risk of suit (Studdert et al.).

Findings raised questions on the capacity of tort litigation to offer incentives in improving the quality and safety of a nursing home care (Studdert et al., 2011). There was no clear evidence to suggest that superior performance is rewarded with substantial lower risks of suits. Ongoing long-term care sector policy directions, such as public reporting of performance indicators and provide performance-based payments, may be rewarded for making nursing homes safer places for patients (Studdert et al.).

Nurses at the "Sharp End'

The demand for patient care is heaviest on nurses, among all health professionals (Hughes, 2008). When that care falls below standards -- for lack or shortage of resource allocation, appropriate or adequate policies and standards -- the nurse is made responsible most of the time....

The recognition and an understanding of this complex environment and implementing ways of improving its effects is equivalent to providing high or higher-quality and safer care. The fact is that healthcare is provided in an environment where interactions of myriads of factors take place. The disease process, patients, clinicians, technology, policies, procedures and resources collide each day. When they do, all kinds of outcomes occur, including human error. Human error has been defined as the failure to accomplish a goal, plan or outcome. Human error is also the product of failed mental processes or cognitive ability. Human error, the object of malpractice, is the product of active or latent factors. Active factors emanate from systems factors, which produce immediate events and involve operations, such as clinicians. Latent factors are those inherent in the system. Examples of latent actors are a heavy workload, organizational structure, and the work environment. Latent factors or conditions are strewn throughout healthcare and inevitably. Hazards and risks can be reducing by tackling the root causes. Tackling them will lead to latent defects in the organization, leading in turn to leadership, processes and culture. Organizational factors have been called the "blunt end" where the majority of errors or negligence, can be traced back ultimately. Clinicians, including nurses, are considered the sharp end. To prevent errors of negligence and malpractice suits, the organization should be adapted to the cognitive strengths and weaknesses of human beings who work. The most important strategy lies within organizations and their systems of care (Hughes).
Mental functioning is largely automatic, fast and without effort (Hughes, 2008). Many errors occur from errors of thinking alone, which affect decision-making. A nurse's ability to always render logical and accurate decisions and assure patient safety is exposed to complex factors. These factors include one's knowledge base and systems factors, the availability of needed information, workload and barriers to these. The effects of these factors influence and complicate the increasingly complex nature of a nurse's roles and responsibilities, the complexity of preventing errors harming patients, and the availability of resources. Errors have been classified according to the adverse events. These are incidence reports, individual blame and system causes (Hughes)

The complex factors in the occurrences of errors and adverse events are exemplified in medication safety (Hughes, 2011). Studies found that between 3 and 5% of medication errors emanate from medication administration. The nurse must be watching that it does not happen. Administration errors from human factors include performance knowledge deficiencies, fatigue, stress and understaffing, the major factors for errors committed by nurses. Surveys say that administering medications can use up to 40% of the nurse's working time. Errors in medication administration have also been traced to a lack of concentration, distractions, increased workloads and inexperienced staff. This brings to mind that medical administration errors can also emanate from systems factors, such as poor leadership, mal-distribution of resources, poor organizational climate, and the lack of standard operating procedures or SOP. And when errors occur, these deficiencies are viewed as mistakes, violations, and evidence of incompetence. Violations are to be viewed as deviations from safe operating procedures, standards, practices and rules. They can be routine and necessary or entail some risk of harm. Human susceptibility to stress and fatigue, emotions, and sharp or dull cognitive abilities, attention span, and perception can and do thereafter influence problem-solving abilities (Hughes).

Negligence, Malpractice and the Changed Role of the Nurse

The Kansas Supreme Court ruled in 1964 that the primary function of a nurse was only to observe and record patient symptoms and reactions (Abramson & Dugan, 2013). She was not to diagnose or treat these symptoms. If she failed in extending due care, she could be held liable for negligence but not malpractice. Two-decade hence, the New York Court of Appeals rejected and revised this ordinary negligence standard for nurses. It ruled that her role has changed from a passive employee to an assertive and decisive healthcare provider. Today, she monitors complicated physiological data, operates complex lifesaving equipment, and coordinates the delivery of several patient services. With a new recognition of the scope of her practice, the court decided that a nurse can be sued and sentenced for malpractice. Henceforth, any negligent act or omission by her in the course of providing professional services may be construed as malpractice (Abramson & Dugan).

Nursing Malpractice

The standard of nursing care is one of reasonable professional practice in existence at the time the disputed medical care was provided (Abramson & Dugan, 2013). If a nurse specialist, her conduct should be compared with the reasonable…